113 / 364
an unqualified person was not prohibited from
making an application under the Land Registration
Acts unless the application could be fairly properly
described as an application for registration, and an
application for an official search or office copies were
not applications for registration (Section 58 of the
Solicitors Act, 1954 places a restriction on the
drawing of documents and were defined in sub
section (4) of that Section. The section of the Irish
Act states that it applies to the following Acts :—
The drawing or preparing of a document relating
to real or personal estate or any legal proceedings,
the making of an application or the lodging of a
document for registration under the Registration of
Title Act, 1891 or any Act amending that Act, at
the Land Registry or to or with a local registering
authority. The Irish Act would appear to be more
comprehensive on this point than the English Act,
of 1957.
The appeal against conviction on the second
charge was dismissed because on the facts, the
appellant had not discharged the onus of proving
that his acts in preparing or drafting instruments
of transfer under the Land Registration Act, 1925
were not done in expectation of fee, gain or reward
within the meaning of Sect. 20 (i)
(a)
of the Act of
J957-
(Carter
v.
Butcher—
The Law Times,
Vol. 236-207,
April gth, 1965).
Evidence ; Postage
The plaintiffs, a finance company, claimed £406
from the defendants, motor dealers, under an in
demnity in a recourse agreement in respect of a H.P.
agreement which had been terminated owing to the
hirer's default. The defendants claimed,
inter alia,
that until the issue of the writ they had not received
notice of the termination of the H.P. agreement.
It was held in the first instance that in the absence of
their postage book the plaintiffs had not strictly
proved the posting of the letters giving notice of
termination which they alleged had been sent and it
was assumed in the defendants' favour that the
notices might not have reached them.
Judgment
was given in favour of the H.P. Company for £156.
The plaintiffs appealed.
Denning, M. R., stated that the issue depended
upon whether or not the notice was given by the
finance company to the dealers of termination of the
hiring. The plaintiffs had lost their postage book.
If the finance company did not give such notice the
dealers and their position was prejudiced, the loss
was not to be held against the dealers, but must go in
diminution of the finance company's claim. Notice
was not given to the dealers until the issue of the
writ and detriment had thereby been caused to them.
The appeal should be dismissed.
Danckwerts & Winn
L.JJ.agreed.
(Yeoman Credit Limited
v.
Birmingham Com
mercial Motor & Bodyworks Ltd.
(Solicitors Journal
(Vol. 109), p. 293).
Practice—Compromise of Action
In 1963
the plaintiff began an action claiming
relief in respect of architectural work carried out
by the defendant company of property developers ;
the defendants counter-claimed alleging negligence.
In June, 1964 the defendants' solicitors initiated
correspondence "without prejudice", with a view to
compromise, offering £400 and recognising that as
the plaintiff was legally aided they would have to
meet his costs to date. By September the offer had
been increased to £900. The plaintiff's solicitors then
wrote stating that that offer would be accepted on
the understanding that the costs incurred to date
would be paid, and stated that as the plaintiff was
legally aided they would require an order on the
costs and therefore proposed to issue a formal
summons before the Official Referee that terms of
settlement had been arrived at.
They requested
defendants' cheque in settlement and concluded,
that they would prepare a summons and forward it
for "your consent to be indorsed thereon". At the
hearing of the summons before the Official Referee,
the parties were represented only by solicitors' clerks.
The clerk for the defendants indicated that he was
not happy about the position as to costs but the
Official Referee held that, all further proceedings in
the action should be stayed save for the purpose of
carrying into effect the following items :
(i) that the
defendants pay the plaintiff the sum of £900 within
seven days ;
(2) that they pay the plaintiff's costs as
between party and party, such costs to be taxed ;
and (3) that the plaintiff's costs be taxed on a common
fund basis. The defendants appealed on the ground
that, as there was no concluded agreement to com
promise, there was no justification to make the order
which had been made.
Denning, M. R. stated that there was no consent
by the defendant's solicitors' clerk to the making of
a Tomlin order. He stated that in his view when an
action was compromised that gave rise to a new
cause of action, and if there was a dispute the plaintiff
had to sue on the compromise.
In the absence of
consent to the order, the court did not have jurisdic
tion to make it. His lordship allowed the appeal with
some reluctance as did Wynn, L. J.
Danckwerts, L. J., dissenting, said that as a
matter of construction there was on the correspon
dence a final agreement to pay £900 and that agree
ment included a term that the plaintiff's costs should
be provided.